SCENARIO 2 - Planning for the future of a son with an acquired brain injury
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Thomas has an acquired brain injury which he received in an accident at school when he was 14. Thomas has finished rehabilitation. He attends a special program at TAFE but is unlikely to be employed in the open employment market. Thomas needs help with self-care, finances, transport, cooking and shopping.
Thomas is aged 17 years and 6 months. On his 18th birthday Thomas will be entitled to receive the compensation he was awarded from the accident which was held in trust for him until he turned 18. Thomas' mother, Connie, is concerned that once Thomas turns 18 his father (Connie's ex-husband, who is a gambler) will persuade Thomas to give him money until there is nothing left for Thomas.
Possible advice for Connie:
It appears that Connie is concerned that Thomas is unable to make decisions about his money voluntarily. Connie could take Thomas to speak to a solicitor about her concerns for Thomas' future, particularly her concerns about Thomas' father.
The solicitor's advice to Connie would depend on the severity of Thomas' disability. Brain injuries affect people in different ways. If Thomas' brain injury has affected his ability to think and learn (cognitive ability), his behaviour and personality (psychological condition) and his ability to communicate, he may be 'incapable' of making decisions alone.
The law recognises that Thomas has the legal right to control his own life, because the law assumes that Thomas has the "capacity" to make decisions that affect his personal care and finances unless it can be shown that he is "incapable" of making those decisions alone.
If Thomas' brain injury has brought on an intellectual disability, and his needs cannot be met in any other way, a solicitor might recommend that Connie apply to the Queensland Guardianship and Administration Tribunal for an administration order. Connie could apply to be Thomas' financial administrator. If she does not want to take on that role, another appropriate person, for instance, the Public Trustee or a Trustee Company could be appointed.
The Guardianship and Administration Tribunal will only step in if Thomas lacks the "capacity" to manage his money. When deciding whether Thomas has capacity, the Guardianship and Administration Tribunal must consider whether he understands:
- the nature and effect of his decisions, and
- whether he can make the decisions freely and voluntarily, and
- whether he can communicate his decisions in some way.
If Thomas is easily influenced by his father, the Guardianship and Administration Tribunal might decide that Thomas cannot make decisions about his money "freely and voluntarily". The Guardianship and Administration Tribunal could decide that he needs someone to make financial decisions for him.
The Guardianship and Administration Tribunal also looks at the type of decisions Thomas will be making. In this case, Thomas will need to be able to manage his compensation payment. If this is a large amount, it is more likely that the Guardianship and Administration Tribunal will decide that he cannot manage it by himself.
Connie can make the application before Thomas turns 18. The Guardianship and Administration Tribunal has the power to make an appointment "in advance" so long as Thomas is 17 years and 6 months. The appointment will take effect when Thomas reaches 18 years of age.
